Justice Clarence Thomas took a shiv to the Fourth Amendment, this morning. That’s not altogether surprising: the only conservative Justice who had a robust respect for the prohibitions against illegal searches and seizures was Antonin Scalia, and he’s dead.

What’s surprising was that he had the votes to do it. With controversial cases coming down to 4-4 deadlocked decisions all over the place, Thomas wrote a majority, 5-3 opinion in Utah v. Strieff, a big-time Fourth Amendment case where the police admitted to unconstitutionally stopping an American citizen. The conservatives flipped a liberal to get a majority.


Well, you know what they say: if you want to turn a liberal into a conservative, mug him. Stephen Breyer was robbed at knife point in 2012. He’s been trending towards the “criminals = BAD” end of the spectrum while most progressives live towards the “criminals = SAD” end. But today he just went along with Thomas’s “pro-profiling” opinion. Note: Breyer didn’t write a concurrence. He just fully signed onto a Clarence Thomas decision. Somebody could probably count on their hands the number of times that has happened in a case that wasn’t unanimous or nearly unanimous.

The Thomas opinion is a frontal assault on Fourth Amendment protections. A Utah cop, Douglas Fackrel, was trying to bust up a suspected meth house. Edward Strieff was seen leaving that house, and was stopped. Again, the officer admitted that he did not have probable cause to stop Strieff. The officer didn’t observe when Strieff had entered the suspected house, so he couldn’t make any determination as to whether Strieff was there for a quickie drug re-stock, a long conversation about religious geopolitics, or a playdate with his grandkids. Strieff could have been there selling encyclopedias for all Fackrel knew.


During the illegal stop, the Fackrel ran Strieff’s name and an arrest warrant popped up for a traffic violation. At that point, Strieff was arrested and searched (legally). Fackrel found the meth he was looking for. Congratulations on all your success, Utah police. You guys should start your own reality show: Landlocked Monster Fishing Expeditions.

Strieff appealed to have the evidence obtained in the arrest search excluded because it, and the ticky-tack warrant against him, was produced after the illegal stop. Thomas assumed without argument that the stop itself was illegal, but came to the bizarre conclusion that the illegal stop was no big deal. From his awfulness:

While Officer Fackrell’s decision to initiate the stop was mistaken, his conduct thereafter was lawful. The officer’s decision to run the warrant check was a “negligibly burdensome precautio[n]” for officer safety... And Officer Fackrell’s actual search of Strieff was a lawful search incident to arrest...

Moreover, there is no indication that this unlawful stop was part of any systemic or recurrent police misconduct. To the contrary, all the evidence suggests that the stop was an isolated instance of negligence that occurred in connection with a bona-fide investigation of a suspected drug house.

I can’t believe Stephen Breyer signed onto this drivel. A cop stops you illegally and it’s just a “whoops, my bad.” Holding you, again, ILLEGALLY while he desperately tries to find a parking ticket to hang you with is “negligibly burdensome.” And stopping people based on a hunch instead of legally justifiable probable cause is an “isolated instance of negligence,” and not “systemic or recurrent police misconduct.”

Really? Does Clarence Thomas own a television? Does he have any black or brown friends who might give him a view from the other side? Or any white friends who look like Ed Strieff?

That’s the face of a white guy who has probably been profiled once or twice. He probably can’t buy a burrito without somebody suspecting he’s on meth, and the meth in his pockets doesn’t help.


Quite simply, Thomas’s decision opens the door to profiling on an industrial scale. One of the only protections we have against the police rounding up suspects for bogus reasons and justifying those detentions after the fact is the fear of evidence being excluded if the search was unlawful. Here, Thomas is saying: stop whoever you want, for whatever you want, and you might get lucky if they have an outstanding jaywalking ticket.

But you don’t have to take my word for it. Justice Sonia Sotomayor, who has evidently never been mugged, completely obliterated Thomas’s argument in a stinging dissent. Already, this section from her dissent is more popular than anything Thomas had to say:

By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.

We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere... They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.

* * *

I dissent

Remember, the Justices see each others opinions before they are published. So Breyer looked at what Thomas wrote and looked at what Sotomayor wrote and went with Thomas without even offering a slightly different take where he called an illegal stop something more than an innocent mistake.


If Obama or Clinton gets to appoint Scalia’s successor, Breyer’s going to become the next powerful “swing vote” on the Court.